State ex rel. Kiel v. Baird

Currier, Judge, delivered the opinion of the court. This is a quo wctrranto proceeding. The information shows and the answer admits that Kiel, the relator, was duly elected treasurer of Cooper county in 1868, and that he duly qualified and assumed the duties of that office. He was elected for a term of two years. It further appears that the attorney for Cooper county, in December, 1869, presented to the County Court of that county an information in which he alleged that Kiel had then been unable to attend to the duties of the office for a period of fifty days ; that he was not likely to be in a condition to resume his official duties for some time, and that the interests of the county required immediate attention on the part of a competent officer. On the basis of that information the County Court proceeded to inquire into the case ex parte, and, as a result of such examination, declared the office of treasurer of Cooper county vacant, and thereupon appointed defendant to the office and commissioned him accordingly. Where is the legal warrant for these proceedings ? We are referred to the statute (Gen. Stat. 1865, p. 226, § 4), which provides as follows: “'In case of vacancy in the office of treasurer, by death, resignation, removal, or otherwise, it shall be the duty of the County Court of the proper county to fill such vacancy by appointment.” This statute authorizes the County Court to fill an existing vacancy, but confers upon the court no power to create the vacancy it is to supply. The statute cited confers no [304] jurisdiction upon the County Court to act in the premises until a vacancy actually exists. The pleadings show that there was no vacancy in the office at the time the court assumed to act. The complaint of the county attorney is that the relator occupied the office but neglected its duties. That is the substance of his averments. At the trial in the Circuit Court the defendant offered oral evidence which tended to show that the relator was affected with a malady which caused temporary insanity. The statute provides for an inquiry into cases of alleged insanity, and enacts a mode of proceeding by jury. That method of investigation was not adopted. The action of the County Court was arbitrary and unwarranted by law. The judgment of the court below, ousting the defendant, must therefore be affirmed. The other judges concur.